Karnataka High Court
Sri Raajasab Alias Rajasab S/O. ... vs The State Of Karnataka on 1 October, 2024
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CRL.RP No. 100273 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.100273 OF 2022
(397(Cr.PC)/438(BNSS))
BETWEEN:
SRI RAAJASAB @ RAJASAB
S/O. YAMANOOR SAB MARANAL,
AGE. 41 YEARS, OCC. DRIVER,
R/O. KONASAGAR-583277,
TQ. YELBURGA, DIST. KOPPAL.
...PETITIONER
(BY SRI NEELENDRA D.GUNDE, ADV. FOR PETITIONER)
AND:
THE STATE OF KARNATAKA,
BY YELBURGA POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD-580001.
...RESPONDENT
(BY SRI JAIRAM SIDDI, HCGP FOR RESPONDENT)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., SEEKING TO ALLOW THIS
Digitally signed by CRIMINAL REVISION PETITION, BY SETTING ASIDE THE JUDGMENT
JAGADISH T R
AND ORDER OF CONVICTION AND SENTENCE DATED 22.07.2022
Location: HIGH
COURT OF PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
KARNATAKA KOPPAL IN CRIMINAL APPEAL NO.36/2021, THEREBY DISMISSING
THE APPEAL FILED BY THE PETITIONER AND CONFIRMING THE
JUDGMENT AND ORDER OF CONVICTION DATED 21.08.2021 PASSED
BY THE CIVIL JUDGE AND JMFC, YELBURGA IN CC NO.85/2014
THEREBY CONVICTING THE PETITIONER FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 323, 324, 353, 504, 506 OF IPC AND
SECTION 323 OF IPC, SENTENCING TO UNDERGO 6 MONTHS S.I.
AND FINE OF RS.500/- WITH DEFAULT OF FINE AMOUNT 2 MONTHS
SENTENCE INCREASES AND FOR OFFENCE PUNISHABLE UNDER
SECTION 324 OF IPC, SENTENCING TO UNDERGO 1 YEAR WITH
DEFAULT CLAUSE OF RS.2,000/- WITH DEFAULT CLAUSE OF FINE
AMOUNT 6 MONTHS SENTENCE INCREASES AND FOR OFFENCE
PUNISHABLE UNDER SECTION 353 OF IPC WITH DEFAULT CLAUSE,
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CRL.RP No. 100273 of 2022
SENTENCING FOR 1 YEAR 5 MONTHS AND FINE OF RS.1,000/- WITH
DEFAULT CLAUSE 6 MONTHS SENTENCING WILL INCREASE AND FOR
OFFENCE PUNISHABLE UNDER SECTION 504 OF IPC WITH DEFAULT
CLAUSE, SENTENCING FOR 3 MONTHS TO PAY A FINE OF RS.500/-
WITH DEFAULT CLAUSE 2 MONTH SENTENCING WILL INCREASE,
FOR OFFENCE PUNISHABLE UNDER SECTION 506 WITH DEFAULT
CLAUSE, SENTENCING FOR 1 YEAR TO PAY A FINE OF RS.1,000/-
WITH DEFAULT CLAUSE SENTENCE WILL INCREASE 5 MONTHS, IN
THE INTERESTS OF JUSTICE AND EQUITY.
THIS CRIMINAL REVISION PETITION, COMING ON FOR
DICTATING ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
ORAL JUDGMENT
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)
In this revision petition filed under Section 397
read with Section 401 of Criminal Procedure Code (for
short, "Cr.P.C"), the petitioner who is accused has
challenged his conviction and sentence for the offences
punishable under Sections 323, 324, 353, 504 and 506
of IPC, imposed by the Trial Court, which came to be
confirmed by the Sessions Court by dismissing the
appeal filed by him.
2. For the sake of convenience, the parties are
referred to by their ranks before the Trial Court.
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3. A charge sheet came to be filed against the
accused alleging that on 18.02.2024 complainant-
Meerusab Totad was the Conductor and CW.4-Nagappa
Ganiger was the Driver-cum-Conductor of K.S.R.T.C.
Bus bearing registration No.KA-37/F-185 plying from
Yalburga to Hanumapura and back via Konasagar,
Vajrabandi and Tummaraguddi At around 5.30 p.m.
when they were proceeding from Konasagar to
Vajrabandi, infront of High School of Vajrabandi,
accused was proceeding in a Tum Tum by tying another
Tum Tum vehicle which had broken down. When
suddenly accused stopped the Tum Tum on the road, it
came infront of the Bus and the driver of the bus
avoided accident within a distance of 3 inches.
Therefore, the Driver of the Bus stopped the bus by the
side of road and the conductor got down and advised
the accused as to why he stopped the Tum Tum in the
middle of the road. Accused picked up quarrel with
him as well as the driver of the bus, who wants to his
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rescue and slapped the complainant on his cheek.
When the driver of the bus went to the rescue of
complainant, accused quarreled with him, abused in
filthy language, assaulted with hands and bit him on
his stomach right hand fingers and left portion of the
chest and caused simple injuries. He also gave threat
to the life of complainant and CW-4 and prevented
them from discharging their official duty and thereby
committed the offences punishable under Sections 323,
324, 354, 504 and 506 of IPC.
4. Accused contested the case by pleading not
guilty. In order to prove the allegations, prosecution
examined PWs.1 to 10 and got marked Exs.P.1 to 11.
5. During the course of his statement under
Section 313 of Cr.P.C. accused denied the incriminating
evidence led by the prosecution.
6. Accused has not led any defence evidence.
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7. The trial Court convicted the accused and
sentenced him as detailed in the impugned Judgment
and order.
8. The appeal filed by the accused came to be
dismissed by the Sessions Court.
9. Aggrieved by the same, accused is before
this Court contending that the impugned Judgments
and orders are contrary to law, facts and evidence on
record and as such liable to be set aside. The medical
evidence is contrary to the oral testimony of the
witnesses. Though the accused is a total stranger to
the complainant, in the complaint his name is reflected
and prosecution has not explained how the said details
were known to the complainant. The case of the
prosecution consists of manipulations. No test
identification parade is conducted by the Investigating
Officer. The private medical practitioner, who first
examined the injured, is not cited as a witness. The
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teeth impressions are not collected creating doubt in
the prosecution case.
9.1. No independent witnesses are examined in
support of the prosecution case. According to the
prosecution, the complaint was filed at 8.30 p.m.,
whereas the Wound Certificate state that at that time
he was at the Hospital. To attract the provisions of
Section 324 of IPC, use of deadly weapon is required
and teeth bite would not attract the said provision. The
witnesses have not stated the abusive words used by
the accused to attract Section 504 of IPC. The
prosecution has not proved intention on the part of the
accused to deter complainant and PW.5 from
discharging the duty and as such the offence
punishable under Section 353 of IPC is not made out.
Viewed from any angle the impugned Judgments and
Orders are not sustainable and prayed to allow the
petition, set aside the impugned Judgments and orders
and acquit the accused.
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10. On the other hand, the learned High Court
Government Pleader supporting the impugned
judgments and orders of the trial Court as well as the
Sessions Court, submitted that the identity of the
accused is not disputed. In as much as, the fact that he
was regularly plying on that road by transporting
passengers in his Tum Tum. In fact, the accused has
imputed motive to PWs.3 and 5 of false implication of
the accused on the ground that there was competition
between them and accused as he was taking away their
passengers. He would further submit that the accused
has not at all disputed his presence at the place of
incidence through the testimony of PWs.3, 5 who are the
Conductor and Driver of the bus and PW.6 Prakash, who
is one of the passengers. The prosecution has proved
the actual incident wherein the accused assaulted both
PWs.2 and 5 and also bit PW.5, who came to rescue of
PW.3. The other witnesses corroborate the case of
prosecution. In the light of the same, the trial Court as
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well as the Sessions Court are justified in convicting the
accused. The punishment imposed is also commensurate
with the charges established against the accused and
sought for dismissal of the petition.
11. Heard arguments of both sides and perused
the record.
12. The fact that on 18.02.2014 PW.3 was the
Conductor and PW.5 was the Driver of K.S.R.T.C. bus
bearing registration No.K-37/F-185 plying from
Yelburga-Hanumapura and back via Vajrabandi is not
disputed by the accused. The evidence of PWs.3 and 5
prove this fact. The evidence of PW.9-Eshwarappa,
Assistant Traffic Inspector coupled with Ex.Ps.10 trip
sheet and Ex.P.11 daily report submitted by the
Conductor, prove and corroborate with the testimony of
PWs.3 and 5. PW.6, who is one of the passengers of the
bus also prove that on the date of incident, PWs.3 and 5
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were the Conductor and Driver of the bus in question on
the said route via Vajrabandi.
13. PWs.3, 5 and 6 have deposed in unequivocal
terms about the incident. Their evidence proved that
when the incident took place, accused, who is the Driver
of Tum Tum was towing another Tum Tum which was
broken down by tying it to the first Tum Tum. Since knot
of the rope used for tying the broken down Tum Tum
opened, it started moving back. PW.5 the Driver of the
K.S.R.T.C. bus was able to stop the bus within 3 inches
and avoided accident. Therefore, PW.3 Conductor of the
bus got down to advice the accused not to do so.
Accused became angry and slapped PW.3. When PW.5
the driver intervened, accused started abusing him and
when advised not to do so, accused bit him on his right
thumb and stomach. It is pertinent to note that PW.6 is
a handicap and having a pass issued by the K.S.R.T.C. It
appears the Investigating Officer could not find out any
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of the passengers travelled in the said bus. Since PW.6
is holding a pass and travelled on the date of incident in
the bus in question, the Investigating Officer has
questioned him and recorded his statement. He has
denied the suggestion that on that day, he was not
travelling in the said bus and to help PWs.3 and 5 he is
giving false evidence. PWs.3, 5 and 6 are not having any
ill will or motive to falsely implicate the accused.
14. Sofar as the contention of the accused that
test identification parade is not conducted and as such
the identity of the accused is not established. It is
pertinent to note that accused is the driver of Tum Tum
regularly plying on the said route. Therefore, he was a
known person in the said area. Consequently, PWs.3, 5
and 6 were knowing him. Infact the accused has taken
up a defence that as he was picking up passengers in
the said route, PWs.3 and 5 were having ill-will against
him. It goes to show that accused was seen by PWs.3, 5
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and 6. Therefore, the question of holding test
identification parade to establish his identity does not
arise.
15. The defence has also claim that as per Ex.P.2
complaint and FIR, the complaint was received at 8.30
p.m., but at that time the injured were at the Hospital.
It is pertinent to note that on receipt of information
regarding the incident from the Hospital, the
Investigating Officer has visited the Hospital and
received the complaint. He has returned to the Police
Station and registered the case at 9.25 p.m. Therefore,
there is no discrepancy on that aspect.
16. After coming to know about the incident
through telephonic communication, PW.9 Eshwarappa
Angadi has sent PW.7 Mohammed Rafiq, another Driver
to drive the bus in question. In turn, PW.7 has come to
the spot took PWs.3, 5 and other passengers to
Yelburga Bus stop and after leaving the passengers at
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Yelburga, he took PWs.3 and 5 to the Hospital. The
evidence of PWs.7 and 9 prove this fact. The evidence of
PW.6, who is the eyewitness, establish the fact that
before the incident took place, there were about 50
passengers in the bus, but after the incident only around
eight passengers were left. When there is any
breakdown of the bus or on account of some incident,
there is uncertainty as to when the bus would proceed
normally, some of the passengers who are able to reach
the destination by other mode would choose to leave the
bus. Only those who want an alternative arrangement to
be made by the department would remain. In that way,
it appears only around eight passengers were left, when
PW.7-Mohammed Rafiq came and took the bus to the
Yelburga. It appears the Investigating Officer has
recorded the statement of PW.7 Mohammed Rafiq as
though he is an eyewitness and till he reached the spot,
the quarrel was going on. When he reached the spot,
after one hour of receiving the information, it cannot be
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expected that the quarrel was still going on. Therefore,
rightly he has denied the suggestion by the prosecution
that he has witnessed the accused assaulting PWs.3 and
5. The testimony of PWs.7 and 9 support and
corroborate the evidence of PWs.3 and 5, who are the
victims and injured.
17. So far as the medical evidence is concerned,
PW.3 has deposed that when they went to Yelaburga,
the Doctor was not present and he and PW.5 were
treated by the nurse. PW.5 has also deposed that first
he was treated by the nurse. However, he was not
stated whether he was treated by the Doctor also. The
testimony of PWs.3 and 5 on this aspect is not
challenged by the prosecution by cross examining them
and suggesting that at the Yelburga Government
Hospital they were treated by the Duty Doctor. During
his cross examination, PW.3 has deposed that when
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they reach the Yelburga Government Hospital, it was
7:30 PM.
18. According to the prosecution, PW.8 Dr.Syeda
Aisha Nagina is the Medical Officer at Yelburga
Government Hospital, who treated PWs.3 and 5. She
has deposed that on the date of incident at 8:30 p.m.,
he has examined and treated them and issued the
Injury Certificates at Exs.P.5 and 6. She has denied the
suggestion that when PWs.3 and 5 were brought to the
Hospital, she was not present and therefore she has not
treated them and later issued the Injury Certificates. As
already noted, PW.3 has deposed in unequivocal terms
that by the time they reach the Hospital, it was 7:30
p.m. and he has not deposed regarding PW.8 treating
him and PW.5.
18.1. It appears that PW.8 was not present in the
Hospital and therefore she has not treated PWs.3 and 5
or she came later and therefore in the Wound Certificate
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the time of examination of PWs.3 and 5 is noted as 8:30
p.m., even though they reach the Hospital at 7:30 p.m.
The fact that PW.8 is not able to give the details of the
injuries suffered by PWs.3 and 5, including the number
of bite marks found on PW.5 also create doubt whether
she has in fact given treatment to them. For this reason,
this Court is of the opinion that the prosecution has
failed to prove that the accused has committed the
offence punishable under Section 324 of IPC. However,
the prosecution has established that accused has
committed the offences punishable under Sections 323,
504, 506 and 353 of IPC.
19. Now coming to the punishment imposed by
the trial Court and whether there is any scope for
interference on that aspect. Sofar as the offence
punishable under Section 323 of IPC is concerned, the
punishment prescribed is imprisonment of either
description which may extend to one year or with fine
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which may extend to Rs.1,000/- or with both. Sofar as
Sections 353, 504 and 506 of IPC are concerned, the
punishment prescribed is imprisonment of either
description for a term which may extend to two years or
fine or with both.
20. The evidence placed on record prove that the
accused was towing a broken down Tum Tum with the
help of another Tum Tum by tying them together. Since
the rope tying them gave away, the broken down Tum
Tum started coming back and PWs.5 the Driver of
KSRTC bus managed to stop his bus within 3 inches or
else it would have resulted in accident. When PWs.3 and
5 tried to advise the accused, he not only failed to listen
the advice, but also assaulted them. He bit PW.5 on his
chest and right hand forefinger. Unfortunately, the
prosecution failed to establish the medical evidence and
therefore the accused is acquitted for the offence
punishable under Section 324 of IPC. On account of the
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accused quarreling and blocking the way, he prevented
PWs.3 and 5 from discharging their official duty. He has
also abused them in filthy language and given threat to
their life. Taking into consideration these aspects, this
Court is of the considered opinion that sentencing
accused to undergo rigorous imprisonment for six
months and pay fine of Rs.8,000/-, in default to undergo
simple imprisonment for one month would meet the
ends of justice for the offence punishable under Section
353 of IPC.
21. Sofar as the offences under Sections 323, 504
and 506 of IPC are concerned, sentencing accused to
pay fine of Rs.4,000/- each, in default to undergo simple
imprisonment for one month each would meet the ends
of justice.
22. Out of the fine amount realized, a sum of
Rs.15,000/- is ordered to be paid to PW.5-Nagappa
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Karabasappa Ganiger and remaining Rs.5,000/- shall be
paid to PW.3 Meerasab Shabuddinsab Totad.
23. To the above extent, the petition is allowed in
part and accordingly the following:
ORDER
(i) Petition filed under Section 397 read with
Section 401 of IPC by the accused is
allowed in part.
(ii) Accused is acquitted of the offence
punishable under Section 324 of IPC.
(iii) The Judgment and order of the trial Court
(in CC.No.85/2014) and Sessions Court
(in Crl.A.No.36/2021) regarding the
conviction of accused for the offences
punishable under Sections 323, 504, 506
and 353 of IPC are confirmed.
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(iv) The accused is sentenced to undergo
rigorous imprisonment for six months and
pay fine of Rs.8,000/- in default to
undergo simple imprisonment for one
month for the offence punishable under
Section 353 of IPC.
(v) Accused is sentence to pay fine of
Rs.4,000/- each, in default to undergo
simple imprisonment for one month each
for the offences punishable under Section
323, 504 and 506 of IPC.
(vi) Out of the fine amount realized,
Rs.15,000/- shall be paid to PW.5-
Nagappa Karabasappa Ganiger and
Rs.5,000/- to PW.3-Meerasab
Shabuddinsab Totad by way of
compensation.
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(vii) Send back the Sessions Court and trial
Court records along with copy of this
order.
Sd/-
(J.M.KHAZI)
JUDGE
CKK
